The Supremes and Same-Sex Marriage: Day 1

Lawyer, author and long-time feminist activist Brenda Feigen was at the Supreme Court today to watch and hear the Proposition 8 case arguments. Here’s her report:

My feelings are full and complex after today’s Proposition 8 hearing at the U.S. Supreme Court.

Since the hearing on Hollingsworth v. Perry started with Chief Justice John Roberts interrupting the Prop 8 proponents’ lawyer, Charles Cooper, barely a sentence into his speech to say he wanted to hear about whether they even had standing to bring the case to court, there was a full-throated bombardment from virtually every justice (except Clarence Thomas who never says anything) on that issue. My conclusion is that there may be five justices who don’t think they should be hearing the case, which, of course, brings up the question of why did they take it in the first place?

I think Justices Antonin Scalia, Samuel Alito and maybe even Sonia Sotomayor alluded to a real problem: If these people who are arguing the case for California’s Proposition 8 don’t have standing, who does? Someone should. Attorney Ted Olson—on the side in opposition to Prop 8 (as was U.S. Solicitor General Donald Verrilli—says that people who represent an initiative (the proponents of Prop 8) have no fiduciary duty to the state and, therefore, should not be able to represent it as they’re trying to do here. Does that mean he’d prefer to let the lower-court decision that Prop 8 is unconstitutional ride? No. He’d like the court to rule on the constitutional question, but this remains a big open issue in the case: I’m not sure we have a majority willing to reach the broad question of whether it’s constitutional, in any state, to prevent us from marrying.

Later in the hearing, the Solicitor General was grilled on the jurisdiction of the Supreme Court and the sweep of its ruling. Justice Stephen Breyer asked pointedly how he can argue that a state that does nothing to protect us can be left alone, but a state like California—or any other state that has civil unions or domestic partnerships and thus has tried to be more fair to same-sex couples—can be forced to let us get married (vs. allow those other states to relegate us to no fairness at all).

When the issue of the constitutionality of Prop 8 was addressed head on, Justice Anthony Kennedy seemed clearly on the side that Prop 8 is unconstitutional. That was clinched for me when he asked Cooper if he really thinks we should prevent parents of the 40,000 children of same-sex couples from “full recognition and full status”—from getting married. It became clear that the justices leaning toward holding Prop 8 unconstitutional would grill Cooper most, whereas the conservatives reserved their fire-power for Ted Olson.

Justice Breyer asked the obvious question: If procreation is the issue, as Cooper kept insisting, why should California allow sterile couples to marry? And Justice Kagan, picking up on this, asked Cooper if it would be constitutional to prevent people over 55 from marrying. After some jokes about whether it would pass muster to ask people who want to marry if they’re both fertile (or not) Cooper actually said that very few men outlive their own fertility, meaning they can father babies forever. This does not speak to the issue of how women in those marriages might actually bear children. At this point, Cooper, who said he feels it’s good for men over 55 to be married so they wouldn’t go around impregnating random other women, seemed not only flustered but pathetic.

Justice Ruth Bader Ginsburg then observed that people in prison are allowed to marry—people who will never get out of jail and thus cannot make babies. How is that OK, but preventing same-sex couples from marrying is not? (I hope the strength of this point will carry her on to a broad ruling on the prohibition against same-sex marriage in most states. Having sat at the counsel table with her when she argued the most important gender discrimination case of the ‘70s, I know she will rule on the merits for same-sex couples, if not now then in the very near future.)

It finally came time to stop Cooper and let Ted Olson have his turn. He was eloquent when he stated that the right to marry is fundamental, part of the right of privacy, association, liberty and the pursuit of happiness.

Of course, Justice Scalia, who believes the constitution is now what it was in the beginning and always will be, wanted to know exactly when it became unconstitutional to exclude gays and lesbians from marrying. I could see others metaphorically scratching their heads with this question. Olson advised him that in California this happened when the state Supreme Court ruled we had the right to marry. This led Scalia to counter with this query: If Prop 8 had happened before the state court ruling, would we have any argument about its unconstitutionality? This, of course, is his way to get to the issue of what the Court should do about states that now have in place prohibitions on same-sex marriage. To Scalia, if the Court grants same-sex couples the right to marry, we can expect those couples to have the right to adopt children—and he thinks that’s controversial. For me, this harkens back to Florida in the 1970s when Anita Bryant started her Save the Children campaign and where it’s still impossible for gays & lesbians to adopt children. Justice Ginsburg countered on this point that it is legal for same-sex couples to adopt in California, which is all that technically matters here.

So do we have a majority willing to answer the broad question of whether it’s constitutional to prevent same-sex couples from marrying? I know that on the merits–if they get to them–Proposition 8 would be considered unconstitutional by at least the Court’s four liberal justices (Breyer, Sotomayor, Ginsberg and Elena Kagan) and the swing-vote, Kennedy. However, I feel quite sure that a majority doesn’t want to rule for the whole country right now. I would like to be surprised, but it seems that it will take another case brought by same-sex couples in a state that does not have the complicated history of Prop 8 to get to that. I still think that we will have a ruling that Prop 8 is unconstitutional, but that the rest of the country—and maybe even the other states in the 9th Circuit—may have to wait for a broader ruling on same-sex marriage.

Postscript: I chatted with California Attorney General Kamala Harris before the hearing and she was as excited as me. Afterwards I talked with California Lt. Gov. Gavin Newsom—the man who launched same-sex marriage efforts in California in 2004 when he directed the issuance of marriage licenses to same-sex couples as mayor of San Francisco—and he was as confused as me about the likely outcome. But now that I’ve had a chance to review the transcript and to think more calmly, I feel it was a victory to be in that courtroom, to hear the ways LGBT people have been discriminated against, and to feel the inevitable tug of history into a future of equality for all of us.

Brenda Feigen and her partner Joanne Parrent have been together for 23 years; they married in 2008 during the brief window of legal opportunity before Proposition 8 ended same-sex marriage in California.